QUESTION: My partner and I, a couple in a registered civil union, are planning to have a baby, either through a surrogate or adoption. While this is very exciting, it is also stress-ful as both my partner and I have full-time employment. Would either my partner or I qualify for maternity leave?
ANSWER: Just as our social landscape and traditional concepts of marriage, sexuality and gender are evolving, so does our law. In a recent labour case in which the applicant had also entered into a registered civil union with his partner, and thereafer elected to have a child through a surrogate, the Labour Court ordered that the employer must not discriminate against an applicant on the basis of his gender, and that the applicant be given four months paid maternity leave.
As in your situation, both the applicant and his partner were employed full time, and were concerned about the crucial early care and bonding necessary for any newborn. Upon requesting maternity leave, the employer informed the applicant that he was not entitled to paid maternity leave, as the BCEA and the company’s internal policies only made reference to maternity leave for female employees.
In a landmark judgement, our Labour Court found that the basis for providing maternity leave was not solely based on the physical and emotional interests of a mother who has recently given birth, but that it was just as important in respect of guarding the best interests of the newborn, whose early development, nurturing and socialisation are crucial.
In considering the applicant’s case, the court looked at the applicant’s right to equality, and to not be discriminated against on the basis of his gender, family responsibility or sexual orientation, and then also looked at the child’s best interests. The court found that in these specific circumstances, the applicant was on equal footing to that of a female counterpart, with the rights and responsibilities arising from the birth of a child, and subsequently the applicant had the right to be treated equally and be given the same benefits in order for him to exercise his parental rights and responsibilities. As such, the applicant was entitled to four months’ paid maternity leave as allowed for by the company’s policy in respect of female employees.
While this judgement is a significant step in favour of the rights and benefits of male employees and new fathers, the judgement does not mandate that all employees who are new fathers, irrespective of circumstances, would be entitled to four months’ paid maternity leave. The specific circumstances of each employee will have to be considered.
In your case, if you and your partner, a couple in a registered civil union, agreed that one of you would be fulfilling the role of primary caregiver to your newborn, and you become parents through a valid surrogacy agreement, whereby you are given the baby immediately after the child’s birth, the primary caregiver would most likely be entitled to four months’ maternity leave. However, in other circumstances, such as if you adopt a child, or a father decides to be the primary caregiver while the mother returns to work, these benefits will not necessarily be awarded to you or other fathers. The best interests of the child will be the deciding factor to be considered in each case.
If your employer is not amenable to grant you maternity leave, it may be advisable to approach a labour practitioner for advice on your right to such leave.
Jacyn Mitchley, associate, Phatshoane Henney Attorneys